Calcutta High Court
Supriya Chakraborty (Nee Paramanik) vs Champak Kumar Chakraborty on 13 November, 1998
Equivalent citations: (1999)1CALLT213(HC), II(1999)DMC5, AIR 2000 CALCUTTA 76, (1999) 2 DMC 5, (2000) 1 CIVILCOURTC 678, (1999) 2 RECCIVR 606, (1999) 2 CAL LJ 214, (1999) 1 CALLT 213, (2000) CAL WN 207, (1999) 3 CIVLJ 442, (1999) 2 HINDULR 339, (1999) 2 MARRILJ 519, (1999) 3 ICC 416
JUDGMENT D.B. Dutta, J.
1. This is an application under section 115 CPC directed against order No. 90 dated 13.1.98 and order No. 95 dated 2.3.98 passed by the learned second Additional District Judge in MAT Suit No. 75 of 1993.
2. The opposite party husband filed the suit under section 27 of the Special Marriage Act for divorce on the grounds of cruelty and desertion. He subsequently filed a petition under Order 6 Rule 17 read with section 151 CPC on 11.12.97 for amendment of (lie plaint for addition of an alternative prayer for a decree of nullity of marriage for non-consumatlon of the marriage between the parties and also for consequent amendment of the cause title of the plaint. The respondent wife opposed the prayer for amendment by filing written objection on 5.1.98. The court below was of the view that in view of the averments already made in the original plaint to the effect that there was no cohabitation between the parties, the alternative prayer for a decree of nullity of marriage under section 25 of the Special Marriage Act could have been made at the very inception and that there was no legal bar to making good the omission and as such, the court below was Inclined to allow the petition for amendment but since the said amendment was being made after a lapse of five years from the date of filing of the plaint, the court allowed the amendment subject to payment of cost by the plaintiff opposite party to the respondent petitioner and fixed 28.1.98 for payment of such cost and also for further order with regard to the amendment petition. On 27.2.98, the plaintiff tendered the amount of cost to the respondent petitioner who refused to accept the same on the ground that it was not paid within the date fixed and filed an application praying for rejecting the amendment. Upon hearing both parties, the court gave the liberty to the plaintiff to make the payment of cost by challan in favour of the respondent and fixed 2.3.98 for filing the challan, and on that very date (27.2.98) the plaintiff filed a petition praying for depositing the amendment cost in the court and the court was pleased to allow the prayer and directed the challan to be filed on the date fixed. On the date fixed, the challan showing the deposit of amendment cost was filed and the court was pleased to finally allow the amendment of the plaint. Being aggrieved by this amendment, the wife respondent has come up in the present revision.
3. First, it has been contended by Mr. Tapan Dutta, the learned counsel appearing on behalf of the petitioner that it is one of the settled principles of law that the amendment should not be granted so as to convert the suit into another of a completely different, new and inconsistent character and that by allowing the amendment the learned court below did not follow the above principle. It is next contended by Mr. Dutta that it is also one of the well-established principles of law that no amendment should be allowed the effect of which would be to take away from the defendant a legal right which has accrued to her by lapse of time and that by allowing this amendment, the court below did not also follow this principle. It is submitted that under section 25 of the Special Marriage Act, a marriage which falls within the purview of clauses (i), (ii) and (iii) of the section shall be voidable and may be annuled by a decree of nullity. The two provisos of the section prescribe periods of limitation for Instituting proceedings for the cases specified in clauses (ii) and (iii) respectively but does not prescribe any period of limitation for the case specified in clause (i). By the amendment, the plaintiff opposite party Incorporated the alternative relief of annulment of the marriage by a decree of nullity on the ground specified in clause (i) of section 25. Accordingly, it is argued that sub-section (2) of section 29 of the Limitation Act would be attracted here and the case under section 25of the Special Marriage Act would be governed by the provisions of the Limitation Act and that the said case was already barred by limitation by reason of which a right which had already accrued to the respondent petitioner was sought to be taken away by the amendment in question. In support of his contention that a proceeding under section 25(i) of the Special Marriage Act would be governed by the general law of limitation as provided in Limitation Act, reliance was placed by Mr. Dutta on a Division Bench decision : Sfpra Dey v. Ajtt Kr. Dey. For the reasons aforesaid, it is contended on behalf of the revisionist that the court below committed a jurisdiclional error in allowing the amendment and as such, the impugned orders are liable to be set aside.
4. In repelling the first ground urged on behalf of the petitioner, Mr. Subhra Kamal Mukherjee. the learned counsel for the plaintiff opposite party drew my attention to paragraph 2 of the original plaint wherein it has been categorically stated that the marriage has not been consumated since the parties did not stay under the same roof even for a single day since its registration. In the circumstances, it is contended by Mr. Mukherjee that by the Impuged amendment only the relief, which could have been prayed for on the basis of the aforesaid averments but was omitted to be claimed through inadvertance, was being prayed for in the alternative form. Reference was made to Order 7 Rule 7 of the CPC which requires every plaint to state specifically the relief which the plaintiff claims either simply or in the alternative and it also provides that it shall not be necessary to ask for general or other relief which may always be given as the court may think just to the same extent as if it had been asked for. It is submitted by Mr. Mukherjee that in order to strictly comply with the requirements of Order 7 Rule 7, the alternative relief, to which the plaintiff opposite party would have been otherwise entitled by reason of the alleged non-consumation of the marriage which has already been pleaded in the original plaint, was being specially asked for. In the circumstances, it is contended that the addition of the alternative relief allowed by the court below would not have the effect of introducing a totally new, different and inconsistent plea altogether as suggested by Mr. Dutta. In repellng the second ground urged on behalf of the petitioner, Mr. Mukherjee contended that the provisions of the Limitaition Act would not be applicable to a case under section 25(1) of the Special Marriage Act in view of the provisions of sub section (3) of section 29 of the Limitation Act and he placed his reliance on the Supreme Court decision : Lata Kamat v. Vilas. It is contended by Mr. Mukherjee that the Calcutta decision cited by Mr. Dutta would be of no help to the petitioner inasmuch as it does not lay down any authority for the proposition that sub section (3) of section 29 of the Limitation Act would not exclude the operation of the provisions of the Limitation Act to a suit with respect to marriage and divorce. Reference was also made to section 34(1)(e) of the Special Marriage Act and it was contended by Mr. Mukherjee that even in the absence of any specific period of limitation prescribed by section 25 of the Special Marriage Act for the case covered by clause (1) of the section and also Insplte of non-applicability of the provisions of the general law of limitation as provided in the Limitation Act. It cannot be said that there is absolutely no time limit for getting a relief under section 25(1) Inasmuch as clause (e) of sub section (1) of section 34 of the Act categorically provides that in any proceeding under Chapter V and VI (the present case being a proceeding under Chapter VI), whether defended or not, the court is to decree the relief only when it is satisfied that there has not been any unnecessary or Improper delay in Instituting the proceeding and not otherwise. It Is, therefore, idle to suggest that the court below has by the Impugned orders granted relief to be added after it had already become time barred. Accordingly, it is submitted that there is no case for Interference with the Impugned orders.
5. Let me now examine the grounds that were urged on behalf of the revisionist. In view of the averments made in paragraph 2 of the plaint, it cannot be said that by the impugned amendment an altogether new, different and Inconsistent plea was being taken by the plaintiff opposite parly. On the basis of what has been pleaded in paragraph 2 of the pallnt, the plaintiff could have prayed for the alternative relief for annulment of marriage by a decree of nullity under section 25(1) of the Special Marriage Act. As such, no element of surprise was being Introduced by the addition of the alternative relief by way of amendment. Moreover, under Order 7 Rule 7 the alternative relief was required to be specifically asked for in the plaint. The omlssfoln was nothing hut inadvertant and as such, it cannot be said that the learned court below was unjustified in allowing the omission to be made good.
6. I now come to the other ground which is based on the question of limitation. Undisputedly, the matrimonial suit was instituted a few days after the expiry of three years from the date of solemnisation of the marriage. According to Mr. Dutta, the suit for annulment of marriage under section 25(1) of the Special Marriage Act would be governed by the provisions of the Limitation Act. It is submitted that the residuary article of the Limitation Act would actually govern this suit so far as it relates to the amended relief and the said relief was already time barred when the amendment was allowed and as such, the Impugned amendment should not have been allowed Inasmuch as it would take away the right that has already accrued to the petitioner. On behalf of the opposite party, it is urged that the provisions of the Limitation Act would not at all apply here and as such, the question of allowing a time-barred claim to be added would not arise. Section 29 of the Limitation Act reads as under :
"29. Savings (1) nothing in this Act shall affect section 25 of the Indian contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only insofar as. and to the extent to which, they are not expressly excluded by such special or local law.
(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
(4) Sections 25 and 26 and the definition of 'easement' in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882, may for the time being extend."
7. In . the question arose as to whether section 5 of the Limitation Act would apply to a matrimonial appeal preferred beyond the period of limitation prescribed under section 28(4) of the Hindu Marriage Act and the Division Bench answered that question in the affirmative. In doing so, the Division Bench Interpreted the meaning of the expression 'other proceeding' in section 29(3) of the limitation Act and held that the said expression does not include appeals and accordingly the Division Bench held that notwithstanding the bar under section 29(3) of the Limitation Act the provisions of the Limitation Act would apply to matrimonial appeal under section 28 of the Hindu Marriage Act. This ration was also referred to by the apex court in . 11 is true that in paragraph 12 of the Judgment , the following observation was made;
"There is no provision providing for any special period of llmilation for a matrimonial appeal under the Indian Divorce Act and the period is computed according to the general law as provided in the Limitation Act. That was also the position in respect of matrimonial appeals under the Hindu Marriage Act until a special period of limitation was provided in section 28(4) as amended in 1976."
8. But this observation alone cannot be construed as the ratio dlctdetKil for the proposition that, when there is no provision providing for any special period of limitation for a suit proceeding under special law, the provisions of the Limitation Act would apply, to that suit or proceeding. A decision is an authority for what it decides. On a careful perusal of this decision, it becomes clear that the only question that arose for determination was whether the provisions of the Limitation Act would apply to the matrimonial appeal under section 28 of the Hindu Marriage Act despite the provisions of section 29(3) of the Limitation Act and it is this question which has been decided in the affirmative by the Calcutta decision. In the Supreme Court case as well cited on behalf of the opposite parlv. the queslion arose for decision as to whether provisions of section 12(2) of the Limitation Act would be applicable to an appeal under section 28 of the Hindu Marriage Act. In deciding the question, the Supreme Court took note of the Calcutta decision referred to above. It also took note of the provisions of section 2(L) of the Limitation Act which defines the expression "suit" and according to that definition, suit does not include an appeal. The Supreme Court also took note of the provisions of sub section (2) of section 29 of the Limitation Act according to which the provisions of sections will apply where the limitation provided by the special law is different from the period prescribed by the schedule of the Limitation Act. In the Hindu Marriage Act, the period for preferring appeal is prescribed while there is no provision providing for any limitation for an appeal under the Hindu Marriage Act in the schedule of the Limitation Act. The Supreme Court held that the limitation prescribed under the Hindu Marriage Act for an appeal is different and not prescribed in the schedule and as such. It was held that the provisions of section 3 of the Limitation Act would apply to a matrimonial appeal under the Hindu Marriage Act with the result that the prlvlslons contained in sections 4 to 24 of the limitation Act shall also apply to such an appeal so far and to the extent to which they are not expressly excluded by the Hindu Marriage Act which is a special law. The Supreme Court took note -if the provisions of sub section (3) of section 29 of the Limitation Act and observed :
"clause (3) of this section provides that the provisions of this Act shall not apply to any suit or other proceedings under any marriage law. It is therefore clear that so far as clause (3) is concerned, the Impact of it will be that the provisions of the Limitation Act will not apply so far as a suit or an original proceeding under the Act is concerned but clause (3) will not govern and appeal."
9. The Supreme Court decision in can, thus, be unhesitatingly cited as an authority for the proposition that the provisions of the Limitation Act will not apply to any suit or any proceeding under any marriage law. In other words, the provisions of the Limitation Act cannot apply to the Instant suit or proceeding under the Special Marriage Act. It is submitted by Mr, Dutta that if it is held that the provisions of Limitation Act do not apply to a suit under section 25(1) of the Special Marriage Act and since section 25 does not prescribe any period of limitation for filing such a suit, it would follow as if there is no time limit at all for filing a suit under section 25(1) of the Special Marriage Act and in that case, it would lead to an absurd proposition. To repel this contention, Mr. Mukherjee refers to clause (e) of sub section (1) of section 34 of the Special Marriage Act which clearly puts an embargo upon the court's power to grant a relief in such a proceeding if there has been an unnecessary or improper delay in instituting the proceeding and it is only when the proceeding reaches the stage for deciding the question whether the relief claimed should be decreed or not that the occasion will arise for the court to decide the question whether there has been any unnecessary or Improper delay in instituting the proceeding under section 25(1) of the Special Marriage Act. The Impugned amendment will evidently take effect from the date of the suit and even if the contention of Mr. Dutta be accepted that the amended relief would be governed by the residuary article of the Limitation Act, the period of limitation is to be computed from the date on which the right to suit arose and it cannot be said that the right to sue for annulment of a marriage under section 25(1) of the Special Marriage Act would arise only after there is wilful refusal by the respondent to consumate the marriage and certainly it could not be said to have arisen on the very date of marriage. Thus, considering the question of delay from all angles, it must be held that the delay in specifically claiming the relief under section 25(1) of the Special Marriage Act can not be considered to be unreasonable and unnecessary at the stage of allowing the amendment without deciding the question on evidence during,the trial. Thus, for the reasons stated above, there is no scope for interference with the Impugned order in exercise of the revisional jurisdiction of the court. The revislonal application is, therefore, dismissed without, however, any order as to costs.
10. Application dismissed